Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms

13. Spreading the Word: Australia’s National Human Rights and Equal Opportunity Commission as Transnational Legal Entrepreneur

CHAPTER THIRTEEN Spreading the Word Australia’s National Human Rights and Equal Opportunity Commission as Transnational Legal Entrepreneur RHONDA EVANS CASE1 Human rights norms were internationalized during the second half of the twentieth century through a multitude of declarations, treaties, and conventions . Nearly all nation-states have accepted obligations pursuant to these instruments, but supranational enforcement of their terms has proven problematic . United Nations (UN) treaty bodies may only issue what amounts to advisory opinions, and beyond Europe, regional human rights regimes remain inadequate and largely impotent. Two sets of recent developments, however, have created new national avenues for holding governments accountable to transnational human rights standards. First, national courts, many of them newly empowered through domestic bills of rights, have shown an increased willingness to incorporate into their decision making not only principles of international conventions and customary law but also relevant decisions issued by their peers in other countries. Cumulatively, these judicial practices have given rise to a burgeoning body of transnational jurisprudence. Second, national human rights institutions (NHRIs), quasi-governmental agencies intended to promote and protect human rights, have proliferated internationally.The number of national human rights commissions, probably the most popular form of NHRI, at least quadrupled between 1990 and 2000, bringing the total number to near eighty.2 Although these institutions lack coercive power vis-à-vis governments, they nevertheless can promote conformity with transnational human rights standards in myriad 235 236 GLOBALIZING JUSTICE ways, including through the national courts. Given the growing attentiveness of many judges to transnational sources of law, NHRI lawyers may expect to find a receptive audience on the bench. This chapter focuses on the intersection of these two developments. It examines the extent to which Australia’s Human Rights and Equal Opportunity Commission (HREOC) has acted as a transnational legal entrepreneur, using its authority to intervene in litigation as a means of promoting the incorporation of human rights treaty obligations and transnational human rights jurisprudence into the decision making of domestic courts. It also evaluates HREOC’s impact on the courts in this regard. Concentrating on the sixteen immigration and refugee cases in which HREOC intervened, the analysis demonstrates that the commission’s lawyers consistently relied in their legal arguments on Australia’s international human rights obligations and the corpus of transnational jurisprudence that has developed in recent years. In so doing, they apprised national judges of crossnational trends and promoted a symbiotic relationship between the national and transnational legal orders. HREOC’s impact in immigration and refugee cases, however, was limited.Although it scored one major victory in an immigration case before the Australian High Court in 1995, subsequent victories in three separate cases involving refugees were eviscerated on appellate review. Most of the cases in which the commission intervened involved issues concerning the government’s controversial policy of detaining, indefinitely if necessary, all unlawful noncitizens who arrive on Australia’s shores seeking refugee status . The analysis indicates that in the face of a recalcitrant government that controls the judicial appointments process, transnational legal entrepreneurship before the courts may prove an ineffective strategy for holding the government accountable to its international human rights obligations. THE LITERATURE Judicial use of international law and transnational precedent, particularly with respect to human rights, has attracted considerable scholarly attention.3 Because of the communications and technological revolutions that have made crossnational legal information readily available, as well as a growing number of international judicial conclaves that promote cross-national socialization, today many judges regard themselves as “cosmopolitan transnational actors.”4 Judges, however, do not ordinarily incorporate international and foreign jurisprudence into their decisions sua sponte. Lawyers also serve as conduits of transnational legal ideas, especially in common law systems, where they play a key role in framing issues and crafting legal arguments. Therefore, it makes sense to examine the ways in which they serve as “transnational legal entrepreneurs” before domestic courts.5 237 SPREADING THE WORD Research has shown that NHRIs can serve as “institutional homes” for activist lawyers well versed in transnational human rights law.6 These bodies can provide the requisite support for sustained litigation campaigns.7 For example, Karen J. Alter and Jeannette Vargas found that Britain’s Equal Opportunities Commission (EOC), the quasi-state body charged with enforcing the Sex Discrimination Act 1975, used European law and courts to develop national gender equity policy in favorable ways despite a hostile Thatcher government.8 In its structure and...